Nelson Tebbe (Brooklyn Law School) & Deborah A. Widiss (Indiana
University-Bloomington, Maurer School of Law) have posted Equal Access and the Right to Marry, 158 University of Pennsylvania
Law Review 1375 (2010) on SSRN.Here is the
abstract:

How should courts think about the
right to marry? This is a question of principle, of course, but it has also
become a matter of litigation strategy for advocates challenging different-sex
marriage requirements across the country. We contend that courts and
commentators have largely overlooked the strongest argument in support of a
constitutional right to marry. In our view, the right to marry is best
conceptualized as a matter of equal access to government support and
recognition and the doctrinal vehicle that most closely matches the structure
of the right can be found in the fundamental interest branch of equal
protection law. Two other arguments have dominated litigation and adjudication
so far, but both of them suffer from weaknesses. First, a liberty theory
grounded in due process argues that everyone has a fundamental right to civil
marriage. But civil marriage is a government program that states likely could
abolish without constitutional difficulty. In that way, it differs from other
family-related liberties such as the ability to procreate or engage in sexual
intimacy. Second, an equality theory suggests that classifications on the basis
of sexual orientation are constitutionally suspect. But that approach is
unlikely to succeed in the Supreme Court or many state tribunals. Equal access,
in contrast, requires states to justify laws that selectively interfere with
civil marriage, regardless of any independent due process or
classification-based equal protection violations. We show how this approach is
grounded in precedent regarding intimate relationships, as well as in analogous
law concerning voting and court access. Our proposal offers courts a workable
way to evaluate the constitutionality of different-sex marriage requirements
and a more satisfying conceptual basis for the right to marry generally. It
also suggests a useful framework for thinking about recognition of other
nontraditional family structures.